Democracy and justice are still alive
 and well in this small country of ours!

Last Monday may not be recognised as a watershed in Sri Lankan legal history but perhaps it should be. For, it was on Monday that the Supreme Court annulled the sale of Lanka Marine Services Limited to John Keells Holdings, declaring that the deal was ‘illegal, unlawful and arbitrary.’

And, for good measure, the Court ordered Treasury Secretary P. B. Jayasundera to pay a sum of five hundred thousand rupees to the state as compensation for wrongful acts while John Keells Holdings was ordered to pay Vasudeva Nanayakkara, the veteran politician-turned-presidential advisor who brought the fundamental rights case, two hundred and fifty thousand rupees as costs.

Of late, at a time when most institutions in the country are in a state of apathy and decline, the Supreme Court has taken upon itself the mantle of being a public defender. This judicial activism-perhaps never seen before in this country-has caught many by surprise and has also caught them in the act on several occasions.

The highest court in the land, led by a Chief Justice who is not afraid to speak his mind and matches his words with his deeds, has acted previously on a variety of issues in the public interest: it intervened in grade one school admissions, it thwarted a strike by teachers and it stepped in to outlaw permanent military checkpoints.

The Court has also had the courage to stand up to the authorities when the circumstances demanded; it did not hesitate to declare that removing and transporting persons from the Tamil community arbitrarily from lodges in Colombo was illegal, despite the orders coming from the high echelons of power.

Therefore, Monday’s verdict should hardly be surprising. But then, it is refreshing for a variety of reasons and for a nation which is almost resigned to its fate, it offers renewed hope that all is not lost.

Firstly, the action was initiated by Vasudeva Nanayakkara as a fundamental rights application - not in his capacity as a politician, trade unionist or presidential advisor. What this means is that the average citizen -you and me- could do so too and challenge the decisions of the high and mighty, if we believe that it is in the public interest.

This may, of course, not be a practical course of action for the average person in this country, but Monday’s ruling emphasises the fact that if the need is great, citizens should not doubt that the pathway for redress exists.

Then, the Court also held the present Secretary to the Treasury personally responsible for what transpired, which is why he was asked to pay ‘compensation’ of five hundred thousand rupees. It is an enlightened and emboldened decision by the court, for it sends a powerful message to the bureaucracy - that they are accountable for what they do, regardless of why they do it and even if they are doing it as a ritual to appease their political gods to ensure their survival in high places.

The verdict also brings in to focus the issue of probity among public officials. In this verdict, the court made 19 orders, of which most are against Treasury Secretary, in his then capacity as Chairman of the Public Enterprise Reform Commission. It also held that as a result of the land deal, the government had lost a vast amount of revenue.

It is a verdict that the Secretary to the Treasury should consider seriously and decide what he should do in its aftermath. Whether the public will have confidence in seeing such an official continue in office is a moot point. Now, all his decisions will be viewed with circumspection.

It is therefore debatable whether such a highly placed official could now function independently and efficiently. We are certain the Secretary to the Treasury will arrive at an appropriate decision of his own, but some times, it may be better to leave while people are still asking why you are leaving instead of waiting until they ask you why you are not leaving, but we must surely leave that for the Secretary to decide.

The other issue that must arise from the verdict is whether there would be other repercussions as a result. If the transaction was ‘wrong and fraudulent’ as the Court sees it and if the state lost millions or billions of rupees in revenue, would this amount to misappropriation? And if that is indeed the case, shouldn’t those responsible be prosecuted by the state? Eager legal eagles will no doubt ponder this issue but the question is whether the wheels of justice will turn swiftly enough for such a process to become reality.

There is of course, irony written all over the verdict as well. The man who brought the action to court is an advisor to President Mahinda Rajapaksa. The President is the Minister of Finance whose Secretary has now been found fault with. And among those cited as respondents are Ministers Karu Jayasuriya and Milinda Moragoda who were then ministers in the United National Party government but are now ministers in President Rajapaksa’s Cabinet!

This might suggest that there are wheels within wheels and that it is a tangled web that has been woven. But then, that is all the more reason why last Monday’s verdict of the Supreme Court should be hailed: the court has ignored all these intricacies and decided the issue only on its merits. It does suggest that democracy and justice are after all, still alive and well in this small country of ours!








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